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As for the evidence of Lady Tichborne, the Chief Justice bade the jury not to be led away by idle declamation about a " mother's instinct," — after all it was nothing more than instinct. If, before she had seen him, the blunders about the "brown mark," the "Brighton card case," and innumerable others, had not so much as shaken the lady's predetermined belief, then her judgment certainly was entitled to have but slight weight. The manner in which she herself had recognized him, no less than the manner in which she had encountered doubts and expostulations coming from others who failed to agree with her, bore in the same manner against allowing to her opinion the full value which might otherwise be claimed for the assertion of a mother in such a matter.
When the defendant and Lady Radcliffe first encountered, her husband, Sir J. Percival Radcliffe, and her sister, Mrs. Towneley, were present. Mrs. Towneley was much the older of the two, and there was no resemblance between them in feature. The defendant however saluted her as Mrs. Radcliffe. Afterward defendant sought to explain his blunder by saying that the ladies had their veils down. In this he was contradicted by them. Even if the veils were down, it was a question how transparent they were and how far they permitted him to see the countenances behind them. He certainly undertook to make the recognition. The Chief Justice said it was for the jury to consider whether in twelve years it was possible for a man so utterly to forget the face and form of a woman whom he had passionately loved as thus to fail to recognize her.
At a second interview the defendant, whether from alarm, embarrassment, anger, or other cause, abruptly broke off the conversation with the remark that "this was not in the eontract!"
Defendant wrote to Hopkins, the old solicitor of the Tichborne family, referring to their "old friendship" and speaking of his "pleasure in again receiving that gentleman's advice." Whereas Roger had left home with feelings by no means especially kindly towards Hopkins, who had played such a part in the proposed arrangements concerning the family estates when Roger came of age, as had inspired the young heir with suspicion, if not with actual dislike. Hopkins had at first failed to recognize the defendant as Sir Roger; but he had by degrees been won over to a contrary opinion, — by what means, as it was remarked, did not appear.
Bogle, Carter, and M'Cann, the two last being old military servants of Roger in the Carabineers, had espoused the cause of the defendant. They had lived with him and been supported by his bounty. The two last were now both dead; but while yet alive they had given their evidence in his favor. His Lordship did not accuse them of dishonest conduct or of furnishing illicit information to the defendant. But he reminded the jury that a shrewd man might easily have gathered very much from them, without their intending or knowing it. Especially would this be easy after they had once adopted a favorable belief, ceased to observe the defendant with suspicion, and begun to speak to him with a friendly unreserve and frankness.
In adition to the indirect "coaching" obtainable from so many old servants and others, it had been shown at the trial that the records at the Horse Guards had been examined to find out the places at which Roger's regiment had been quartered during his term of service; that a list of the fathers at Stonyhurst during his school-days there had been obtained; and that other similar investigations had been pursued. In addition to this the Chief Justice reminded the juiy that a great number of Roger's letters, and sundry journals and diaries which he had kept, had all been in the hands of his mother, and had presumably been placed by the Dowager at the disposal of the defendant. From these a great deal could be gathered. His Lordship did not say that any thing had been learned from them; but it was proper to state the fact of such a possibility.
Then the Wapping visits were again dwelt upon. Of their folly the Chief Justice could say nothing stronger than had been already said by Dr. Kenealy himself. Nor was it necessary to point out what they naturally and immediately suggested to every mind. But his Lordship remarked that the destruction of the letters written to the defendant by Orton's sisters, and especially by Charles Orton, who was receiving a weekly stipend from him, was most significant. It would have been a matter of the highest interest and importance to know upon what basis those letters were written. Were they addressed to Roger Tichborne or to Arthur Orton? In which character did they show that the writers recognized the defendant, and that he, at least in the case of Charles Orton, allowed them to recognize him? Had they borne this indirect testimony to the fact of his being Tichborne, why should they have been destroyed? Why not, rather, carefully preserved and triumphantly produced?
A lock of hair had been sent from Chili, which was sworn to have been cut from the head of Arthur Orton when he was at Melipilla. It was proved that Orton was at that place, and stayed there a year. It had not been proved that Roger had ever been there; indeed the contrary seemed probable, if not certain. Now, this lock of hair, when first received, had been accepted by defendant as his own; and it was not till long after, when his blunder had become obvious, that he repudiated it, and said that he had been mistaken in acknowledging it to have been cut from his head. Yet at first he was well pleased to get it, and wrote in a manner expressive of satisfaction that his friend Castro had "sent part of my hair." The lock was laid beside a lock cut from Roger's head at nearly the same time ; it was very much lighter. If, said the Chief Justice, emphatically, that hair from Melipilla had really grown on this defendant's head, then this defendant was proved not to be Roger Tichborne.
His Lordship further dwelt upon the fact that the defendant had not only at first appeared wholly ignorant of the only journey made by Roger on which he could possibly have deviated to Melipilla, but that defendant had even positively set that visit at a time when it was clearly proved to be physically impossible that Roger should have been there. These blunders he fell into in his Chancery examination in 1867. Afterward he in part amended his story at the trial in 1871. But it was noteworthy that in the interval Moore, the man who had been in attendance upon Roger in South America, had turned up, and had shed a great deal of light upon that part of Roger's career.
As for the mere opinions which had been expressed on the question of identity, especially after so long a time had elapsed, his Lordship frankly said that he thought little of most of them. Many of those advanced by the Wapping witnesses in favor of the defendant were obviously of slight worth. Yet there were some few to which greater weight must be conceded; for example, that of Miss Loder. She was not likely to forget or mistake her lover. Neither if Orton had treated her ill and jilted her, was it any reason why she should have any spite to wreak against Sir Roger Tichborne.
The Chief Justice then adverted with much severity to the manner in which the defendant and his friends, agents, and supporters had sought to accumulate evidence in his favor by creating a popular excitement in his behalf. Public meetings had been held, addresses had been made, and all for the sake of arousing so strong and wide-spread a prejudice and force of public opinion in his favor that persons would succumb to it, and be carried away by it to believe in him. Witnesses were not left to form an unbiassed judgment, and the hope had been entertained that even the jury could not be insensible to such a pressure of general and loudly expressed conviction. The judges had allowed the defendant immunities and privileges, because they had felt that in so costly a trial, where the Government was against him, he ought to have a full opportunity to appeal for pecuniary aid. But the liberality thus manifested by the Court had been scandalously abused, and his Lordship expressed his desire that it should not hereafter be drawn into precedent.
Nor did the Government escape uncastigated. His Lordship had a thong in his scourge for every back. The Crown had shown a disgraceful parsimony in failing to produce sundry important foreign witnesses. In a cause of the nature and magnitude of this one, when Government had once resolved to prosecute, nothing could excuse them for not prosecuting thoroughly. No consideration of expense should interfere with their making out the clearest and most indubitable case possible. They were bound to put the truth beyond a doubt, and no witness who could advance this purpose should be left unproduced, no matter what it might" cost to bring him. Government had been derelict in this respect, and was blameworthy.
There was a formidable mass of testimony going to show that the defendant was not Arthur Orton. Marks had been sworn to be upon Arthur which were not upon defendant; and marks were on defendant which were sworn not to be upon Arthur. Much of this evidence, however, was wholly untrustworthy, and much more was subject to grave doubt. The Chief Justice summed it up and commented upon it with much care, but no definite result could possibly be arrived at from such confused and irreconcilable materials. Chaotic his Lordship found it, and chaotic he was obliged to leave it. Some witnesses had sworn to seeing Orton and the defendant together. But they had been sadly inconsistent aa to traits of personal appearance, and as to times and places they had been worse than uncertain, stating absolute impossibilities.
On February 28, the Chief Justice, having in eighteen days succeeded in rehearsing the history of the case, proceeded to "sum up his summing up." In a series of brief and incisive paragraphs he repeated the chief points which had been made against the defendant. He professed to leave it to the jury to determine the conclusiveness of these matters, each and all; but he appealed to the jurors in the unmistakable tone of one challenging them rather than charging them. He seemed to acknowledge their lawful right to acquit the defendant, but to dare them to exercise that right. Three weeks before he had angrily repelled the comparison of himself to Jeffreys, that ancient judge of infamous repute ; but since the days of Jeffreys, it may be doubted if a more unjudicial display has ever been witnessed upon the bench of any high court in England than was shown on the last day of this great trial by his Lordship, Sir Alexander Cockburn. Yet that he professed well must be acknowledged; his abstract and theoretical views of his duty were not far from correct. He said that he knew he had been accused of partiality, that hostile critics, who thought they knew his business better than he himself did, had beeu severe in their animadversions. But he had intended to pursue the strict line of his duty. He did not conceive that a judge discharged his functions in being merely the recipient of evidence which he was to reproduce to the jury without pointing out the facts, and tho legitimate inferences to which those facts naturally gave rise. It is the business of the judge to adjust the scales so that they shall hang evenly; but it is his duty to see that the facts, as they arise, are placed in the one scale or in the other according as they belong in the one or the other. If the facts make one scale kick the beam, it is the fault of the facts, not of the judge. His Lordship and his comrades had sought for possible solutions of points which boro hard on the defendant; if they had found none, it was not to be attributed to the failure in their desire to do strict and impartial justice. It was the business of the judge and the duty owing by the jury to society, not only to protect the innocent, but to take care that the guilty do not escape. The jury had been asked to give the defendant the benefit of their doubts. The defendant was indeed entitled to the benefit of a doubt, but it was the doubt